SYRACUSE, N.Y. – Justin Lucas gathered up $50,000 in cash in 2011 to bail his brother out of jail on a drug charge.

But when Lucas brought the money to the Otsego County jail in a brown paper bag, sheriff’s deputies seized the cash without releasing his brother. They told him the money was the subject of a drug investigation.

Lucas’ brother eventually pleaded guilty to a felony marijuana possession charge. But even with the case over, Lucas couldn’t get his money back. The sheriff’s office had already used a federal law to force him to forfeit the money to the government.

Investigators cited the fact that their drug-sniffing dog picked up the scent of marijuana on the cash, and Lucas’ admission that $10,000 of it had come from his brother’s co-defendant.

The federal civil asset forfeiture law allows local police to get up to 80 percent of money or property seized, with the rest going to the federal government for their role in the investigations and for administering the program.

Lucas’ case was among 117 in the 32-county Northern District of New York over the past five years in which the federal government used the law to seize $43 million in assets without having to charge the owners with a crime.

Revenue from alleged criminal activity

This is the asset forfeiture revenue for the Department of Justice and the Department of the Treasury for the fiscal years 2001-2013. The money and goods are seized under the premise that they were obtained by illegal activities, and therefore, are subject to seizure by law-enforcement agencies. The revenue is split 80/20 with the larger portion going to the agency that seized the goods and money. The other 20 percent pays for the administration of the seizure programs. Below is in billions of dollars.

Under the federal law, law enforcement agencies such as the FBI or DEA can seize someone’s property without charging him or her with a crime. The law allows the government to take the property, then requires the owners to prove their possessions were legally acquired.

For police to keep someone’s assets, they have to be able to prove only that it’s more likely than not that the money or property was used to commit a crime or was the proceeds of a crime. That’s lower than the standard for convicting someone of a crime – “beyond a reasonable doubt.”

If federal prosecutors agree with the law enforcement agency’s decision, they file a civil lawsuit against the property, not the owner. That’s why the lawsuits have odd captions, such as “United States of America vs. One 1999 Chevrolet Pickup Truck.”

Criticisms of Civil Asset Forfeiture

One of the main criticisms of civil asset forfeiture is that the deck is stacked against any property owner who wishes to contest the forfeiture. Because the legal proceeding is against the property rather than the property owner, the owner does not enjoy many of the constitutional protections that are afforded to those who are accused of engaging in criminal activity. Such inequities prompted Brad Cates, director of the asset forfeiture program at the Justice Department from 1985 to 1989, to declare recently that “[a]ll of this is at odds with the rights that Americans have.”

First, the vast majority of cases never see the inside of a courtroom. Any amount of currency can be administratively forfeited; the only time administrative forfeiture is not available is when the forfeiture involves any real estate or personal property worth more than $500,000 (except for so-called hauling conveyances: that is, vehicles, vessels, and aircraft allegedly used to transport illegal drugs, which, like cash or other monetary instruments, can be subjected to administrative forfeiture regardless of their value).

In an administrative proceeding, the agency that stands to gain directly from the forfeiture acts as investigator, prosecutor, judge, and jury. The rules and deadlines governing these proceedings are complicated and opaque, a minefield of technicalities full of traps for an unwary (and often unrepresented) property owner.

With the exception of the Customs Service, there is no effective judicial review from an administrative ruling, and the administrator does not even need to write an order justifying his or her decision. While there is within many agencies a process whereby someone can file a petition for mitigation or remission of the harsh effects of forfeiture, the rules do not allow someone to file such a petition while at the same time contesting the validity of the forfeiture itself. Moreover, it is once more an agency official, not an impartial arbiter, who acts on the petition.

Second, unlike a criminal case, there is no entitlement either to representation by counsel or (except as to real property) to a pre-seizure hearing. Forfeitures are often for an amount small enough that it would make little financial sense for a property owner to hire counsel to contest the forfeiture. Forfeiture cases can take months or years, effectively tying up somebody’s property and creating an extreme hardship for people of modest means or people who run small businesses.

Adding insult to injury, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) lays out specific filing deadlines that must be met by property owners challenging forfeitures. Failure to meet a filing deadline by even a day often results in immediate forfeiture, whereas agencies can allow property to languish in their custody for years.

Third, unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence. Defenders of current civil asset forfeiture procedures note that preponderance of the evidence is the standard of proof that is traditionally used in civil cases. While a true statement, this does not mean that it is the appropriate standard to use in civil asset forfeiture cases given the clear connection between this type of action and a typical criminal case. Moreover, unlike a dispute between two private citizens, there are tremendous disparities in available resources and expertise between the property owner contesting the forfeiture and the governmental entity seeking the forfeiture.

Fourth, also unlike a criminal case in which the prosecutor must prove that the person who used or derived the property acted intentionally or at least was willfully blind to its misuse, in a civil case, the government does not have to prove any of that. Rather, the burden is placed on the “innocent owner” to prove a negative: that he did not know about its illegal use and that, if he did know about it, he did all that could reasonably be expected under the circumstances to terminate such use.

Defenders of current civil asset forfeiture procedures note that the Supreme Court of the United States has held that an innocent owner defense is not constitutionally required, yet the law provides a claimant with the opportunity to present such a defense. Again, while true, that does not mean that the current procedure is fair or the most appropriate standard under the circumstances. The Constitution provides a floor, not a ceiling, when it comes to providing rights; it states what must be provided at a minimum, not what ought to be provided to ensure fairness and strengthen the integrity of the process.

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With a new administration in power and a President and an AG who are allegedly on the side of law and order, we’ll keep an eye on any legislation going through Congress on this matter.

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